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Mandatory Injunctions – Section 39 | Specific Relief Act

2. Exercise of discretion:

In case of suit against encroachment on passage where undue delay of about 27 years was caused in seeking relief, plaintiff was rightly denied to relief of injunction.

3. Injunction:

If there is an encroachment and if the suit is brought within the period of limitation, ordinarily the relief ought to be granted, save and except where the plaintiff had disentitled himself to a discretionary relief by his conduct. In this case, both the Appellate Court and High Court have concurrently held that the plaintiff was guilty of acquiescence in that even though the wall was constructed to his knowledge in 1956, he ap­proached the Court in 1965 and even in that year he did not seek the prayer for removal of wall which prayer was for the first time introduced in 1969. In this background, the submission on behalf of the plaintiff-appel­lant that defendants should be directed to remove the wall and clear the passage of encroachment cannot be entertained.

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In exercise of the inherent powers the Court can grant injunction even in cases which are not covered by Order XXXIX, or by any Rule made under the Code of Civil Procedure if the interest of justice so requires.

On aspects of mandatory injunction and its nature it was observed by Supreme Court that:

“The suit in effect is one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief namely because he had couched the plaint in the form of a suit for mandatory injunction.”

It was further observed that though the relief of mandatory injunction is discretionary and may be denied by the Court in case of delay, attempt should be made to avoid multiplicity of suits and the plaintiffs should not be driven to file another round of suit, with all the attendant delay, trouble and expense. In that view of the matter it was held that the appellant, who was a licensor, was entitled to recover possession of the property from the licensee.

The plaintiff has a strong case for trial. That is, it shall be higher stan­dard than a prima facie case that is normally required for a prohibitory injunction. It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. The balance of conve­nience is in favour of the one seeking such relief.

4. Mandatory injunction:

Even if there was some delay, in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the atten­dant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.

In the present case, it has not been shown that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, in a case of this kind attempt should be made to avoid multi­plicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense.

The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. There­fore, the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.

The plaintiff approaching the Court with suit for mandatory injunction after considerable delay may be disentitled for discretionary relief. In the circumstances of the nature of case, relief not denied.

Where the plaintiffs filed a suit for the reliefs of permanent injunction and mandatory injunction the dispute inter se between the three plaintiffs was held to be immaterial to view of the amendment and further, it was held that so far as defendants were concerned the question of title of plain­tiffs inter se was not at all relevant.

5. Question of:

The Supreme Court observed aspects of provi­sions contained in code as follows:

It is well-settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them.”

6. Relief of declaration:

The first respondent filed a suit seeking relief of declaration to use the suit path, to have free passage of light and air; to have privacy without any obstruction, for permanent injunction restraining the appellant from obstructing the suit path or free passage of light and air and right of privacy of the High Court proceeded not on right lines to give reliefs to the first respondent. Thus, the concurrent findings of the Courts below stand affirmed. Considering facts that two parties are neighbours and should have good neighbourly relations, order passed by Lower Courts is modified by passing suitable direction and for mandatory injunction di­recting the appellant to remove the construction put up obstructing the said suit path.

7. Relief of injunction:

In order to succeed in the suit, it was suffi­cient for the plaintiffs to show that the land was in possession of the plain­tiff or any of them and as the defendants had erected fencing of thorny bushes in the portions on the eastern side, as indicated by letters EFMHOE in the map attached to the plaint, they had made an encroachment on the land. The question whether plaintiff No. 1 or plaintiff No. 3 was in posses­sion of the land in dispute was not at all germane so far as the relief against the defendant was concerned, in view of the findings of fact arrived at by the Courts below that the defendant was not in possession of the land and had no justification to make the encroachment complained of. It is true that the Courts below found as a fact that plaintiff No. 1 was in possession of the land but in view of the amendment sought, for the High Court could have treated the statement of the plaintiffs to mean that the land in dispute could be treated as being in possession of any of the plaintiffs — whether it was plaintiff Nos. 1, 2 or 3 — because in the present suit, the inter se title of plaintiff Nos. 1, 2 and 3 was not involved at all. Therefore, broadly construing the amendment, there does not appear to be any defect in the frame of the suit so as to negative the relief of injunction prayed for by the plaintiffs.

8. Remedy:

For making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current reali­ties, the Court, can, and in many cases must take cautious cognizance of events and developments subsequent to the institution of the proceedings, provided the rules of fairness to both sides are scrupulously obeyed.

9. Right to relief:

It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceedings. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts then he is entitled to its enforcement. Later developments cannot defeat his right. The Court’s procedural delays cannot deprive him of legal justice or rights crystallised in the initial cause of action. The Courts, can, however, take note of subsequent events and mould the relief accordingly, but this can be done only in exceptional cir­cumstances. It was found that the subsequent development in the form of dispossession of respondent No. 1 from the premises in dispute was of the making of defendants themselves.

Therefore, they could not ask for any opportunity before the wrong done by them to respondent No. 1 was un­done by the Court vide decree under appeal particularly when they chose not to participate in the proceedings of the suit and allowed themselves to be proceeded against ex parte.

10. Service contract:

Where in a private employment there was no written contract and employee was not complying with the transfer order and seeking declaration that said transfer order was illegal and that she should continue to be in the service and be entitled to all emoluments. She had also sought permanent injunction restraining employer from holding enquiry against her.

Relief, if granted would amount to enforcing contract of personal service which was barred under law. Such relief could not be granted by Civil Court and suit should be rejected at the threshold an employer could not be forced to take an employee with whom relations had reached a point of complete loss of faith between the two.

11. Unauthorised encroachments:

It has been observed by Supreme Court that:

“We are also of the view that the tendency of raising unlawful con­structions and unauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the society of occupiers and residents of multistoryed buildings.”

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